No Garden of Roses
Q: Walking through an experimental weed garden, I tripped and fell over a raised brick. I had not realized that the bricks on the walkway were so uneven. I have photographs, and they show me lying on the walkway shortly after the accident. However, the photos do not portray the raised brick on which I fell.
A: The owner is likely to argue: (a) the walkway was not defective; (b) even if the walkway was, the defect was ‘open and obvious’; and (c) even if the defect was not, the owner lacked notice of it. A common form of making the third argument is to say that the defect was ‘trivial’.
To prove that the defect was trivial, the owner must show (a) that the defect is, under the circumstances, physically insignificant and (b) that the characteristics of the defect or the surrounding circumstances do not increase the risk that the defect would normally pose.
To prove that the raised brick was an open and obvious condition, the owner would need to show that such bricks were inherent to the nature of the property and could reasonably be anticipated by those using it. If a condition is open and obvious, then an owner often has no duty to protect or warn against it. ‘Open and obvious’ is generally defined to mean readily observable by someone employing the reasonable use of his or her senses.
The absence of a photograph of the raised brick is indeed a big challenge. Perhaps you can obtain photographs elsewhere in the garden, which show that raised bricks were commonplace there. Even better, perhaps the culprit brick has not been reset, so that you can get a photograph of that very brick. In addition, you may well want to take the depositions of the owner and even an expert witness. A landowner has a duty to maintain its premises in a reasonably safe condition. A garden is no exception.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
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